Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9235
 SECOND DIVISION, Docket No. 9257
 2-ICG-SM-182
 The Second Division consisted of the regular members and in
 addition Referee Albert A, Blum when award was rendered.
 ( Sheet Metal Workers' International Association
 Parties to Dispute:
 ( Illinois Central Gulf Railroad Company

 Dispute: Claim of F~aplo~es













Findiggs
The Second Division of the Adjustment Board,, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employee involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The Claimant, Sheet Metal Worker D. C. Etheridge, was suspended for five days for refusing to obey as order from his General Locomotive Foreman J. 8. Hollowell on July 13, 1979. The Organization claims, first, that the hearing was unfair. There was a delay before it started. Moreover, the hearing officer also preferred charges and rendered the decision. The Organization responds that this in itself is not a violation of rules but, in this case, the Organization feels that the hearing officer included his own opinions into the questioning. He also went off the record when he asked whether the Organization had any need to call any further witnesses after it had called several. All. of this, the Organization claims, shows that the hearing officer had prejudiced this case.

 The Organization then discusses the case's background. It reports that shortly before the date of the incident, the Carrier's Paducah Shop had reduced its force and had said it would also reduce overtime. It did furlough employee but, according
 Form 1 Award No. 9235
 Page 2 Docket No. 9257
 2-ICG-SM-182
 to the Organization, overtime increased. The workers at the unit did not want to
 work the overtime under such conditions and organized resistance to such work. The
 Company, therefore, placed notices on the bulletin board telling the employer they
 would have to work overtime.
 As a result of what happened on July 13 when the general foreman went around
 with seniority lists to secure workers to work overtime (which produced this and
 related grievances), an informational picket line was formed. As a result, the
 Carrier and the Organization met to discuss the problem. The Organization feels
 that the supervisors, as a result of pressure from their superiors, felt that they
 had to discipline those who refused to work overtime and this precipitated the
 disciplinary actions taken against the Claimant for the July 13 incident. The
 Organization also feels it affected the hearing officer's judgment.
 Moreover, the Organization declares that the Carrier's general foreman accepted
 excuses from employer in his own department and excused them from overtime. He,
 however, did not give arty Claimant who did not rsork in his department a chance to
 offer any excuse as to why he did not want to work overtime. The Organization feels
 that the Claimant neither behaved improperly nor was insubordinate to his supervisor
 when he refused to work overtime. On the other hand, the Organization feels that
 the supervisor acted in an arbitrary fashion and was guilty of discrimination in
 dealing with the Claimant by not asking him why he did not wish to work overtime.
 According to the Carrier, Foreman Hollowell secured a copy of the seniority

 list and assigned overtime as needed, asking first those with the least seniority. moo
 If the employe offered a reasonable excuse, he was excused. When he reached the
 Claimant's name, the foreman assigned him to work overtime. The Claimant refused
 this direct order. The Claimant gave no reason why he could not work. The Carrier
 claims that other supervisors were present when the Claimant rejected the order to
 work overtime and he was warned that his refusal might subject him to discipline.
 The Carrier declares it has the right to require overtime, and the Organization
 knaves this to be the case even if the Claimant did not.
 In addition, the Carrier feels the hearing was fair. First, the Carrier
 points out that there is no evidence that the Claimant was prejudged. Second, the
 combining of the functions of bringing charges, hearing the case, and issuing the
 discipline in one person in no wary affects the fairness of the hearing as marry
 Board awards indicate. Third, there is no definition of the term "prompt". In
 arty case, the notice of the investigation was sent to the Claimant within fourteen
 days of the incident. Fourth, the fact that the hearing officer told the
 stenographer to go off the record did not affect the case since the Organization's
 objections to his going off the record was put in evidence. For all of these
 reasons, the Carrier feels the hearing was fair.
 Finally, the Carrier feels that the discipline was justified since it proved
 the charge of insubordination and a host of previous Board decisions state that
 insubordination merits discipline. This is particularly true since in this case,
 the Claimant could have obeyed his supervisor, and if he felt the order improper,
 grieved later.
 The Board in analyzing the record, does not feel that the hearing was held in
 an unfair meaner. All of the evidence that the Organization wanted to bring .forward
 was, in fact, brought forward and there is no evidence showing that the Claimant
 was prejudged. The other complaints are minor and did not viably affect the hearing.
 Form 1 Page 3

 Award No. 9235
 Docket No. 9257
 2-ICG-SM-'82

 Concerning, the substance of the case, it is clear that Foreman Hollowell told the Claimant that he "was going to have to force him to work Saturday, July l4t". The Claimant refused. He never gave a reason. The Claimant states he never was asked if he had a reason or was given 8n opportunity to give a reQSOn. Two other supervisors said the Claimant did have the opportunity to give a reason but just refused to work.

 Since the Claimant neither knew nor questioned whether he was the most junior pipefitter being told to work; since he did not know that Foreman Hollowell had accepted excuses from his own subordinates so that they did not have to work; and since employes have to recognize that supervisors have a right to request overtime based on the seniority list and employes have the responsibility of giving a specific reason if they wish to be excused from overtime, the Claimant was, in fact, insubordinate.

 On the other hand, it also appears clear that Foreman Hollowell grave those employes who worked directly under him a chance to give a reason to be excused while his treatment of the Claimant in this case gave the Claimant little, if any, opportunity to give any reason for not working overtime or any hope that if he grave a reason, Foreman Hollowell would pay arty attention to it. For this reason, there was, in fact, discriminatory behavior - one reason that the Board becomes justified in altering discipline.

 There should be a suspension since the Claimant was, in fact, insubordinate. The suspension should be reduced from five to three days since the Claimant was treated in a discriminatory fashion. The Claimant should be made whole for the two days lost, minus whatever he might have earned while out of service during that time, and Part 2(f) of the claim be corrected accordingly.

 A W AR D
Claim sustained in accordance with the Findings.

NATIONAL R1ShROAD ADJUSTMENT BOARD

By Order of Second Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 By.